Articles Posted inJurisdiction and Venue

Suppose you live in Virginia and have been defamed on Facebook or Twitter by someone who lives in another state on the other side of the country. Can you file a lawsuit in Virginia, or do you have to sue in the state of the defendant’s residence? Many have tried to sue distant tortfeasors in Virginia on the theory that social-media posts can be read all over the world (including Virginia) and that the defendant knew his defamatory statements would cause harm to a person located in Virginia, but these lawsuits rarely succeed. It has become clear that to sue a person in Virginia in cases of Internet defamation, courts want to see a purposeful targeting of Virginia readers. Merely issuing a statement published to the entire world is not enough.

The relevant legal concept is that of “specific personal jurisdiction.” The court needs to have power to issue a judgment over another person, and to do so consistent with the United State Constitution, specific (or general) personal jurisdiction must be found to exist. In essence, the question is whether the defendant maintains sufficient “minimum contacts” with Virginia so a lawsuit filed against that person in Virginia would not offend “traditional notions of fair play and substantial justice.” The general idea is that it would not be fair to hale someone to court on the other side of the country if that person had no meaningful connections with that other state. Posting something on Facebook does not connect a person in any meaningful way with every state in the country.

Just last week I wrote about a Virginia state-court case that dealt with the issue of whether sending electronic data through a Virginia server (which often happens when defamation is posted online) could satisfy the “minimum contacts” test needed to establish personal jurisdiction. Two days after I posted that article, a federal case from the Eastern District of Virginia was decided in which a federal judge grappled with the exact same issue. In both cases, the courts reached the same conclusion: in cases of online defamation, personal jurisdiction requires more than merely posting comments hosted on a server that happens to be based in Virginia, or which sends data through a Virginia-based server on its way to the Internet. Due process is not satisfied without purposeful targeting of a Virginia audience.

The federal case is FireClean, LLC v. Andrew Tuohy. According to the allegations of the complaint, the facts are essentially these: FireClean manufactures a gun-cleaning oil it claims reduces carbon residue buildup in firearms. It is made of a blend of at least three natural oils derived from a plant, vegetable, fruit, shrub, flower, or tree nut. Beginning around August 2015, various gun-themed blogs started publicizing that FireClean was really nothing more than “Crisco” or other common vegetable oil. The maker of a competing gun oil posted a video online purporting to prove that FireClean was “pretty much a Crisco oil.” The Vuurwapen Blog took an interest in this allegation and decided to further investigate.

In cases of Internet defamation, the issue of personal jurisdiction comes up a lot. “Personal jurisdiction” refers to a court’s authority to make rulings that affect a person. This isn’t an issue when two Virginia residents are in litigation with each other, as state courts have the power to enter rulings that affect their residents, but when a Virginia resident files a libel lawsuit in Virginia against someone who doesn’t live here, a preliminary issue arises with respect to whether the Virginia court has the power to enter a judgment against the nonresident. If the court lacks personal jurisdiction over the defendant, the case will be dismissed. When defamatory statements are published online and are therefore accessible all over the world, Virginia courts struggle with trying to sort out whether it is constitutionally permissible to assert authority over a writer who has never stepped foot in Virginia.

The basic analysis requires two steps. First, the court must determine whether Virginia’s “long-arm statute” reaches the defendant. (Think of this law as one that describes the circumstances under which the state can reach out with a “long arm” to grab a defendant residing in another state and pull him into Virginia to require him to defend against a lawsuit). Next, assuming the long-arm statute does apply, the court must ensure that exercising personal jurisdiction over that defendant complies with the Due Process Clause of the United States Constitution.

The First Amendment dictates that religious organizations are entitled to decide matters of church governance, faith and doctrine without state interference. Accordingly, as a general rule, courts may not hear disputes involving religious law, principle, doctrine, discipline, custom or administration. In what has come to be known as the “ecclesiastical abstention” doctrine, courts should normally abstain from adjudicating issues involving theological or spiritual judgment, or the internal governance of religious bodies. Courts will often classify the issue as one involving jurisdiction, noting that the religious bodies have exclusive jurisdiction over their own internal workings.

For example, the Supreme Court of Virginia once considered a church pastor’s defamation claim against a church deacon based on his statement that the pastor had “borrowed over $100,000 from believers and has not returned the money.” While an express or implied accusation of theft would normally be treated as defamation per se under Virginia law, the court declined to exercise jurisdiction on the ground that the Free Exercise Clause of the First Amendment “divests a civil court of subject matter jurisdiction to consider a pastor’s defamation claims against a church and its officials.”

Still, courts may exercise jurisdiction over defamation actions involving religious organizations where “neutral principles of law” may be applied to resolve the dispute. The Supreme Court of South Carolina recently granted certiorari to consider the question of whether a pastor may use the First Amendment’s Free Exercise Clause to shield himself from defamation liability stemming from statements he made about the church’s trustees at a congregational meeting or whether the court could apply neutral principles of law to decide the case. The court found that “a tortfeasor is not shielded from liability simply by committing his torts within the walls of a church or under the guise of church governance.”

Carlos Henriquez and his wife traveled from their home in Georgia to Colombia to seek infertility treatments. They eventually contracted with a surrogate mother who gave birth to twins. A custody dispute arose between the Henriquezes and the surrogate, and a Colombian court awarded custody to the Henriquezes. A Colombian newspaper, El Pais, published articles about the case and placed the articles online where Georgia residents could access them. Henriquez brought a defamation claim against El Pais arguing that the articles were defamatory. El Pais moved to dismiss the claim for lack of personal jurisdiction.

Henriquez contended that El Pais targeted his family and purposefully directed the defamatory statements at Georgia. He argued that the court had personal jurisdiction over El Pais because it published defamatory statements in print and on its web page that were seen in Georgia. Henriquez submitted evidence that the El Pais web page contained advertisements for U.S. companies that transacted business in Georgia, from which El Pais derived revenue.

El Pais argued that the court lacked personal jurisdiction because the advertisements were placed on its site by an ad server owned and operated by Pautefacil.com, a Colombian company. El Pais did not market its own goods but merely disseminated news stories. The district court granted the motion to dismiss and Henriquez appealed.

The results of all client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.

The Virginia Defamation Law Blog is not intended as and should not be interpreted as legal advice. Rather, it is intended solely as a general discussion of legal principles. You should not rely on or take action based on this communication without first presenting all relevant details to a competent attorney in your jurisdiction and then receiving the attorney's individualized advice for you. The opinions expressed here are not intended to, nor do they create, any attorney-client relationship.